Final’ish Thoughts On Unsplash

TL:DR – There’s a massive liability issue with Unsplash and sites like it. Photographers are getting taken advantage of. Conde Nast doesn’t even say “Thank you.” People are just one good lawsuit away from the whole thing taking a nose dive.

Here’s my follow up to the Unsplash topic I’ve been talking with folks about for a few weeks. If you think this is long… I edited twenty minutes OUT of the thing! Hit me up in the comments for more discussion.

“Proceed with caution with dealing with Unsplash. Photographers who contribute photos there may find themselves in a lawsuit for a variety of reasons. While an end user clearly has the responsibility to secure permission for a commercial use of a photo of a recognizable person (as evidenced by a model release), stock agencies and photographers have been sued for right of privacy/right of publicity claims when posting and/or offering for licensing photos of people.

End users/publishers who use photos from Unsplash may be subject to liability and damages in several ways. For example, because copyright infringement is strict liability, publishers may infringe if the photos were uploaded and then used without the copyright owner’s permission. Trademark owners may have a trademark infringement claim against the photographer and/or end user if the product photo causes confusion as to the source of the product or dilutes the trademark.

An attorney representing an aggrieved party likely will sue the publisher, Unsplash, and the photographer to increase odds of recovering damages for these claims. Therefore, the “free” element of Unsplash may ultimately cost you more than when using a traditional license model.”

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GDPR pdf regarding Street Photography that I mentioned in the video. This is a really interesting read and it’s going to be interesting to see how this plays out in real life.

Lastly… Would I upload images to unsplash? I’ve thought about it. Would it lead to something? Would my participating in the site “open my eyes” to the benefits? Could I find my cheese? What do you all think?

A full time commercial and editorial photographer, Zack shoots everything from bands to CEOs to ad campaigns. A gifted teacher and communicator, he has an uncanny ability to meet and connect with all types of people.

32 Comments

Dave MillierFebruary 5, 2018 at 7:34 AM

Hi Zack

Just read your blog posts on this Unsplash issue.

It seems to me that in the 20th century photography, as a professional activity, held a special privileged position. Despite practically everyone in the wealthy western world having some kind of camera, whether a SLR or an instamatic, there were barriers that prevented those people trepassing on the professionals’ turf. The barriers include the cost and difficulty of producing high quality images in the film era and getting the attention of those with a monopoly on publishing and distributing them.

This provided a space where dedicated specialist professionals could work and thrive and make a living providing a – somewhat- monopolistic service to designers and other commercial customers that couldn’t be met by hobbiests.

Today, we have seen revolutions in technology that have removed some of those barriers and unleashed the power of billions of amateurs to pour out content that once required highly skilled professionals. The special space that provided a living for the pro has shrunken dramatically. The partial monopoly has broken. The world of amateurs and “occasional pros” is doing the job that used to be done exclusively by pros.

Obviously this is unfortunate for pros trying to make a living in that former space. However, much of the traditional work of the pro wasn’t high end art but simple jobbing work. In a way, the world was just waiting for technology to arrive to make that bread and butter work (which many clients might have seen as unreasonably expensive) go away, and online stock and now free stock services (and simple online theft) has contributed to the devaluation of the services of the pro photographer.

Looking at Unsplash, I see plenty of average stock photography and quite a bit of wonderful photography. It’s free and tempting to consumers of such work (like designers). You can easily see the appeal to everyone but pros.

But I can’t see that Unsplash and their ilk are doing anything wrong – yes, this free content wipes out more of the diminishing space for pro photographers but they had no Universal Right to that space in the first place. As far as clients are concerned, getting hold of photographs is no more than a shopping experience. There is cheap stuff and expensive stuff and now there is free stuff. Which they use depends on their business and their budget.

And of course, there is still opportunity. Pros can still work and be paid to create customised work for clients where there isn’t a free off-the-shelf image from a free site. And pros can simply strive to be better than the free stuff, by making unique imagery and convincing clients that by using them they will be paying for a service that will give them a marketing advantage.

And like the Open Source Software movement (of which I am a fan and a very minor contributor) there are often ancillary services that can be monetised that don’t revolve around simply charging for the software. With software you can charge for convenient distribution, for support and for premium add-ons. Photographers can also look at ways to make a living by selling more than just their photographs. One obvious one you mention in this post is the legal aspect: a professional photographer could maybe charge not so much for their photos but for the guarantee of an authentic, properly released photograph free from legal challenge. Many clients might see removal of risk as a service worth paying for.

Business has always changed as techology changes and no one is guaranteed that the professional space in which they grew up and made their name and their fortune is a space that will persist forever. Ask Kodak.

Looks like you completed misses on the legal issues of model release. Your open source analogy is flawed- things like fit hun and others carry different licenses from free to you just
Make derivative works also free to you just pay for commercial use

When youxintriubute with your code and give it for free say at fit hub- you include a clear license about this and you are giving the grant. There’s no model release to track here – and you bet any company using your code for commercial use better have a way to trace back to what rights exactly you have and if they can do that.

Regarding your video interview with Mikael Cho: If there were any symbiotic benefits for photographers, then Unsplash would be a great idea. I`m all in when it comes to „giving back“. I work with creatives from all fields- film makers, designers, musicians and so on. And if one creative needs my work, but doesn`t have enough cash flying around, I`m always up for: „You know what, I give you what you need now, and deliver the best possible quality- and when I some say need some piece of design work, or a tune for a film, maybe you can help me out then, and we call it even!“ I like the idea of helping others to be successful. Today, I also serve as a part time tutor at my alma mater, the City of Glasgow College. I`m not doing it for the money, but because I like to give back a little of what I got during my time studying photography there. As I said, this was what started my career. So yes, I like giving back. I also like giving something up front. But, as the terms imply, this can never be a one way street.
Unsplash is. The people behind it speak of giving back- but in reality, it`s simply a one way street.
It`s pretty simple. People often say: “There are too many pictures out there, and clients spend less and less money on images, so the business model “being a photographer for a living” is dead, and things like Unsplash are the future.“
Well, I guess we are mixing cause and effect here. Yes, no one is forced to give something away for free. No photographer is lead to believe he / she could make money with Unsplash.
The thing is: Projects like Unsplash are not the result of clients spending less and less on pictures- they are the cause. Projects like Unsplash facilitate the already wide spread opinion, that in the ecosystem of the ceative industry, comprised of designers, film makers, photographers, writers and so on, there is one service, that should be free (while all others should continue making money as they please), and that is photography. There is exactly one product, that should come for free: Pictures- while all other products, like design work including images, films, commercials, advertising, should continue to cost money.
Marketing managers, even in large companies, today already think: “Photographs must be for free. There is absolutely no need for a photographer to charge for his work- look at Unsplash, there you see that it`s perfectly fine for photographers to produce work and to give the results away for free. In fact, it`s a ripp off to charge for pictures. It`s an honour for every photographer to provide images for my company (that is forced to make money) / my project (I am forced to make money with) , and the honour is pay enough. Period.“
And that in fact is the reason why companies spend less and less for images, why budgets for images are shrinking.
It`s not that images were of no use for clients anymore- in fact we live in a world where more shitty images are produced than good ones, and where good images stand out of the background noise more than ever.
Where good images do so much good for companies / clients.
There is still more than enough money companies / clients can spend for images.
There is only one reason why image budgets are shrinking: Because projects like Unsplash lead clients to believe: Images must come for free, and anything else is a ripp off.
This is by far no natural evolution of an industry, it is the forced destruction of something that was working perfectly for all sides involved, out of pure greed induced from one side. Because I feel that there are certain elements in our industry, who discovered: If we could crash the photography industry, then clients have more budgets left to spend for design / film / text / concept work.
I find that the creative industry needs all of it`s various branches in perfect condition to create pieces of work truly useful for clients. We need an atmosphere of cooperation.
But today, printers think they are the better photographers, designers claim the printer ruined his work, photographers try to be film makers with often less than perfect results, 3D artists try to replace film makers and photographers completely.
I believe, life is barely long enough to become a master in one of these professions. And becoming a master in what we do should be something we should strive for. We can`t all be jack of all trades. But we can work together to create true masterpieces our clients love.
It seems to me that some creatives and some branches picked out photography as the weakest link which can be crushed, so that there is more money left for other creatives. The thing is- this well sooner or later crush all branches.
Alone, you can walk fast- but only together you can walk far!
So, if there were a real back and forth, Unsplash were an amazing idea. But as it is now, I find it uses several euphemisms, to create the illusion that it were something with an overall benefit for all participating parties.
But in the end, it just helps to create the illusion that photography should come for free- hence images were totally worthless. And it creates that illusion and that perception not only within the creative industry, but even worse, also among our clients.

Yes but it is leading to mis-educated buyers of work. A self-styled “AirBnB for work and social spaces” wanted to hire me for photographing interiors of venues and locations. They gave me a rate per shoot and list of venues, looked good. Then they sent me the terms. They wanted full copyright transfer and refused to understand the concept of a building release. They’ll find some kid with a camera who will sign their nonsense contract I’m sure, but it’;s f***ing up paid work and misleading buyers of work. I’ve been tempted to contact their clients to tell them about their exploitative intellectual property policy and liability issue but I’m conflicted about doing so. Do we really need to rely on court judgements?

Hopefully these companies find out when they try to sell up and cash in, and the buyer does a legal due diligence and realises their IP is f&&&ed.

Wow, when I heard about Unsplash, my first thought was more or less along these lines: this is a lawsuit jackpot in the making.

Thanks for taking the time to take a closer look and share your insights and helpful warnings about services like these that not only add no value, but also puts produces of photographs and consumers of photographs at risk for no gain.

First, much respect! I already admired you but now even more. But after what you said, why bother asking if you should participate in this? I believe the answer should be a clear no. More than that- rescind on your offer to have them meet at your place.

But Zack with all due respect my friend, no one is holding a gun to the photgraphers head to upload their images. Its free will and like they say ‘ Any publicity is good publicity’ esp in this crazy world.
Art isnt appreciated now, who the hell is going to pay top dollar for my images when they can go to istock and pay $2 for it? its sad yes i know, but to mix it with the big boys i would have to buy myself a $60,0000 camera hire this, hire that. hire space i mean wtf?

This is reminding me of the Lars Ulrich from Metallica saga with Napster.
He didnt end making any friends with that? If UNSPLASH goes offline many more will go online as a BIG FU to the system. Lets not add fuel to the fire.

To say “art” isn’t appreciated just because technologies have made getting stock photography cheaper shows a lack of appreciation for art itself. There are some purist artists who believe ALL art should be free, and people like commercial photogs devalue it by selling it. It’s a philosophical debate for sure, but a worthy argument to make.

The issue here is NOT the appreciation of “art.” It’s the COMMERCIAL VALUE of what that art has for the person using it. If you conflate the two, you will continue to miss opportunities.

Stock photography is indeed worth less today. True. So you need to change how you make your money from your art. It will require you creating art unique enough that someone wants to pay you for it, or pay you to make something similar. (I’m editor for a filmmaking blog and we still pay photogs to take commercial images every now and then when we can’t find what we want on stock sites). Or, like Dave Mille suggested, offer a different level of service.

Art isn’t devalued my friend. The commercialization of art is changing. Those are two different things.

While I can understand that from a pragmatic point of view- or even a “keep your friends close, and your enemies even closer,” it is difficult to comprehend the opinion you put forward as a whole, the sadness you feel and yet go ahead and empower and participate in it.

It’s a bit like complaining about drug addiction, and what dealers do, and do a full video about that, then go ahead and do a little drug dealing business yourself. Dunno man. It feels to me like two irreconcilable points of view- which one is it?

Really appreciate you taking the time Zack to investigate this and also to do so in a professional manner.

As someone trying to get into this industry I realise that I need to go and be creative in what I produce and who I engage with to earn a living. Even when sites like Unsplash threaten to undermine my efforts.

Unsplash is a poorly thought out concept which will do some damage but ultimately a few law suits will see it’s demise. In a world of ever evolving technology we need to learn to adapt and thrive. I remember when Kindles came out, everyone said it would be the end of books. There is something tactile about holding a book rather than a device and I believe that we need to take same approach when it comes to photos.

Anyway, thanks again, this type of stuff is why I follow you, as you give honest and fair assessments that help me and many others. Good to have Zack Back.

That’s a big discussion that’s missing in politics in America right now. People want to point to immigrants as taking jobs but everyone should fear the army of robots that are coming.

Anywho. What does this have to do with anything? The main point I was trying to get across is folks are not covering their asses with releases and that it’s sad that people are so happy to see valuable work being used for free without so much as a thank you. It has nothing to do with photography being automated. But thanks for playing all the same!

The legal issues you mention are a genuine concern, no doubt about that.

The thing to my mind that is more controversial is your statement “valuable work being used for free”. Many professions and businesses including very large companies who dominated markets eventually fall by the wayside as the world changes and no one needs or wants their services any more. That is the way of business. The Internet for example as platform has disrupted many established industries – newspapers and magazines being an obvious one, bricks and mortar shops struggling to compete with online stores another.

The photographic industry is not immune to this kind of change. We have already seen the massive changes to the industry wrought by digital; and the combination of digital and the internet is an even bigger and more potent threat to traditional photographic professions. What used to be valuable – photographs made by professional photographers – is becoming less valuable than it was in the heyday of film photography.

Digital has broken a de facto monopoly by opening up a much larger supply of photographs than used to be the case. Inevitably, as the supply increases, the value of a photograph falls.

I think something that established photographers need to think about carefully is: is the work that I do and think is valuable and grew used to the industry paying handsomely for, really as valuable any more? Is my line of work sustainable as a profession any more (at least in its original form)? There is a lot of debate that could be had around this and in particular, is it reasonable to rail against change and try to occupy some kind of special protected ground where you can beg that “my line of work that I love and get paid for should be specially protected”?

It’s also interesting that some think that photographers are uniquely picked on amongst the creative professions, seeing their incomes disappear while designers and like who use photographs in their work can carry on as normal. I think it is only a matter of time before technology impacts other creative professions too and all aspects of creative work starts to become automated. The rise of robots and machine learning is going to cause huge disruption everywhere – it’s no longer restricted to factories and manufacturing.

The legal aspects that you and other commenters raise are real risks and something like that may put paid to Unsplash and its rivals but the genie is fully out of the bottle and the photographic profession is now very much an uncertain profession with no guarantees of reliable livings to be made. Whether we regret that or rue the disruption to traditional industries, technological disruption is a fact of life that isn’t going to go away. New business models will be needed for long term survival. It may be the case that the photographic industry can re-invent itself as a profession that offers value people are prepared to pay for even in the face of free competition. It’s down to you guys in the industry to find that niche as the traditional industry withers…

Thanks for taking the time to go into this Zack! You’re spot on. Most people – in any industry that I’ve known that operate like this (providing content/services without compensation) don’t last long in business. You can’t eat for long on free. The internet and social media in my view have helped push a mindset that getting “likes” of “followers” somehow creates success and wealth. In the end, all of us must make our choices and adapt as we feel best for our interest and needs. My choice is to find and keep clients that appreciate what I do and the value I bring to the project. On the legal side, Unspalsh is a train wreck waiting to happen, and once a high profile case is brought forward, this model will come apart at the seams. But until then most people contributing or using the photos have the typical mindset of “it won’t happen to me”. Keep up your great work and thanks again! Mike

“Woman sues Chipotle for $2.2 billion over use of photograph: Leah Caldwell, who hails from Sacramento, claims that a photographer took a picture of her in a Chipotle restaurant back in 2006 at the company’s Denver location. She lists Steve Adams (photographer) and CEO Steve Ells as defendants. – Jan 17, 2017”

Zack, your points are well made and the legal issues are clear – photographers seeing your vlog will likely understand and can make their own minds up about the risks they might take. You have a good profile amongst the photographer community and your warnings are likely to be heard quite widely. Where they won’t be heard is amongst all the small businesses owners, who might take comfort in the assurances given by Unsplash and use images that later become the subject of a lawsuit. There won’t be many happy endings there.

You know that statement, the one you probably heard once while visiting a museum with some abstract expressionism kind of art (like CoBrA)
“My little son could do that”.
Or take conceptual art and many other forms of artistic expression (Jean-Michel Basquiat) that is considered to be of high value; ‘I could do that’.

Art and even autonomous art are highly depending on the context and the perception of the people looking at it.
Quality, what does the word quality mean anyway?
Is it quality quality or more like valuable in the way of rare and therefor of more financial value?
Not even that, something, art can be rare but if nobody is interested then it has no value to society.
Does that mean it has no quality, no not necessarily but it is just not be seen.

Is that an unique situation, quality that is not to be seen?
No, may artist works, especially in the nowadays, 20th century art market, many artists that died have works that are sold by huge prices on the art market.
That is a pity, or not, it doe snot matter anymore.

However, it also does not matter if an artist does not bother, does not bother for recognition, a true artist does not work for recognition but just because he has to make this work, it is just a way of living, making art to communicate with yourself and communicating via new reflections via your own art or intellectual perceptions with the world (artists can write an d speak to, sometimes even sing;).

But, yes, even artists need an income to live and survive and it has almost always been that way, at least since 18th/19th century when they lost the church as their main ‘supporter’ for making work.
So, it maybe is not completely an new phenomenon that people working in the ‘visuals business’ really have to dig deep for all their creativity to survive.
It is not even an unique for artists, handcraft people had a same problem since the industrialization. So if the photography is not considered to be art but of a some sort of higher level craftsmanship, the situation does change much (a lot of ‘competition’ in the naborhood).

So, what is the real splashy kind of a problem here?
We have the ‘rare-value’ issue, we have a quality question,
and we have the society eye-perception of quality issue.

Photography nowadays isn’t exactly rare, the production of photos (and videos) is massive, even beyond, the number are mind-dazzling .
The numbers are so huge that one could ask him/herself if it makes sense to make any photo more.

But what about perception then?
How do we judge on quality?
Who is defining quality?

Off course ‘you’ as the great artist (artist like posing in front of the mirror 😉 know what quality is, it is just a matter to convince others, right?
Maybe yes, but maybe a lot of times no.
You maybe can convince someone to understand the high quality of your work, would the work do it as well on its own? Within which context?

But maybe the other one (the visitor and ‘buyer’) can simply not afford your work while even acknowledging the intrinsic quality of your work.
Maybe another work from an other artist looks like it and is a lot cheaper.
Maybe it isn’t even about the quality of the whole work but does only the color matter.
Like; “I really appreciate your work mister artist, but I just need something big and red and abstract above this couch in the hall or as a background on my website.”

So there you go, your work has big quality, is pricy, maybe even people see and like the quality, but the work does not match in their specific smaller purpose concept : it does not have to be art.
Too much quality all over the place! (you are actually just too good).

So, there you are, and many many many other visual artists, photographers (designers not yet) having this quality products that nobody really is interested in.
Because they do not need it, they do not have the budget, they do not see the difference with other products, or they simply do not care because they did not learn it at school (perception of art does not come by itself, you have to be teached about, like literature or poetry).

A mind blowing situation, a (western) society that is less and less interested in (cultural) quality in life.

So where is the deeper answer to this massive misunderstanding and ignoring quality?
Is it technical revolution (do not forget the photo filter business and all the automatic fancy photo like this and that tricks, nice pink over there, and gone were the skin spots, very smooth), is it the democracy of availability for everyone with this huge production as a result, is it lack of eduction to understand quality, or is it just a matter of business, why paying extra for something you do not need when there are free or lower priced alternatives?

Or is it the smart startup businesses that is killing the world that is making newer shiny promises all the time, but have a devastating, destructive effect on society (by making people working for less and less or nothing, no trade unions to protect us, and so on. I cannot give an example here, but I had to think about another very popular cheap service, something without traditional yellow).

Unsplash seems, to me, just another example of combining all the things mentioned above and they succeeded (to survive).
But their success could not be a success if people didn’t believe their promising fairytails.
And apparently a lot of people like these fairy tails * more then true art.
And apparently the users of this service have another cultural perception on quality and society.

But they are not defining real value and artists should not automatically be influenced by this in judging the quality of their own product (like you also don’t smile all day in real life, while the people on the instantpicturewebite let you believe they do, while they probably are not).

You define your own quality.
Motto: The true value of a (even considered dead) pixel depends of the context and the open mindness of the watching eye.

And if there is just too much friction between you and society when trying to make a living with the product you make.
Just keep making the product (if you like), reconsider if you are targeting the right people or context and if that is not solving anything then the money has to come from another kind of activity or only a special part of the former activity (specialist or generalist?)

The artist ‘ain’t’ present
(left the building, died, or just went for a new horizon of opportunities)

All the best, from Europe

* Like artists don’t need to eat
a good guarantee though that they will not produce too much work, it has to be kept rare (for the market value afterwards) right?

I posted this to Youtube, but I’ll post it here too. The linked PDF is not about GDPR, it is an interpretation of Maltese local data act by a local maltese governmental agency!

The EU wide GDPR does not put any restrictions on use of photographs as long as the photographs are not put under “processing” that literally identifies people from the photos.

That is, one can take and publish a photo of a public place that can contain people. The photo can be even used commercially (depending on the local laws).

What one cannot do according to GDPR, is to collect pictures and start identify people from them without their consent. This is completely separate action from taking and publishing a photo. If someone X publishes pictures and someone Y collects them to identify people from them, only the someone Y is responsible to act according to GDPR and ask consent from those people that are identified!

E.g. if you publish pictures in FB, and FB indetifies your friends from those pictures, FB needs to ask consent from your friends before doing so according to GDPR. But you can still publish pictures in FB without your friend’s consent (assuming they do not invade their privacy obviously).

Notice that there might be other additional and local legistlation that prevent you from publishing street photographs (such as that linked one apparently is for Maltese).

But in general, GDPR does not affect on street photography or any other photogrpahy as an art in EU at any way.﻿

Zack was curious how you handle releases for the international trips you do? For example the Morocco trip with the school kids. Was that something a release was needed for or was it really considered editorial work?

Hi Zack, I just finished watching your video. THANK YOU! for putting the word out in such a precise way.
I “discovered” unsplash through the Petapixel article you mention, and I was petrified and really upset, because at the moment I have been accepted as a photographer in a stock agency, it was a complex process, I had to send my images, pass the quality control, 3 interviews and learning how to use the system for tracking sales, uploading images, releases and all of it. I was completely dishearten and frustrated, I’m a pro photographer, I live from selling my images to clients, corporations, individuals, etc.
I was really confused trying to understand if being in unsplash might bring some actual benefit to my business, luckily corporate clients and documentary projects came in the door and I forgot about it.
In perspective, the internet has always embraced the “free everything” flag: free software, free knowledge, free music… I think of unsplash site as the napster of photography, but they don’t share the music of big pocket musicians, they are taking advantage of people who may or may not live from photography.
I hope this model won’t be able to succeed because it’s difficult to monetize, but I suck predicting the future. I think as a pro photographer my job is to keep selling to clients that value paying for exclusive images about their product or service, those are the clients that respect the work we do, and are the ones who understand the importance of good communication through images. I’m putting my companies efforts there.
Thanks again!

The latest (mid-Feb. ’18) news in Medium is that Unsplash is partnering with Simple Token to take this new model further in to the future: http://bit.ly/2C3Lu5I

But more to the point is the comment made by the Simple Token/OST CEO:”OST and Unsplash will tokenize these billions of photo views and turbocharge the Unsplash mission to democratize the market for high quality professional digital photography,” and “Unsplash and OST will utilize blockchain to create the new model and the new currency for photography.”(http://bit.ly/2EChSOz)

What did the two of them just say? “We hope our empty words distract you long enough for us to make lots of money”?

Hey, have faith. As an art director for many years I can tell you that most cheap or free stock imagery is crap and there are clients of discerning taste that will want custom photography from skilled professionals to meet their needs. Leading brands and influencers will still need top quality work to promote their products, services and image. Paint and canvas, pen and paper, keyboard and computer, most people have easy access to all of these tools for many years yet it has not stopped the truly talented artists, writers or programmers from rising to the top of their fields. Talent will always be sought after.

From the get-go reading about the platform of unsplash, its founding ‘mythology’ and the reasoning behind its continued use, I see quite plain its intended purpose is to give designers free material to increase their own value of production. The nonsense of giving back is hogwash, and founder Cho is full of shit if he believes otherwise. He may come off as polite, saying if not us, it will be another. Garbage.

Zack spoke it plain when he shared the anecdote of the photographer whose images were praised by a designer that used them for free, but when said photographer asked for reciprocity, the designer replied pay up chump. Like Rodney Dangerfield, photos “get no respect.”

The attitude from top to bottom at unsplash is an up-ass-smoke-blowing affaire, that as long as ego driving suckas are willing to give out valued work for nothing, regardless of said sucka being pro or amateur, then unsplash is more than willing to continue smoke blowing.

Zack is right in the notion that soon unsplash will go pay to play. Be it from paid membership to tiered systems for eyeballs and all that ego-sturbation.